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HQ 957810




June 21, 1995

CLA-2 R:C:T 957810 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.91.3010

Eleanore Kelly-Kobayashi, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017

RE: Classification of men's woven flannel sleep shorts and sleep pants

Dear Ms. Kelly-Kobayashi:

This is in response to your request of February 17, 1995, on behalf of TMI Apparel Ltd., for a classification ruling on two styles of men's woven flannel garments, i.e., a sleep short and a sleep pant. You indicate the goods will be manufactured in the Philippines, Pakistan or China and will be entered at the port of Los Angeles.

FACTS:

Style 1001F is a pair of men's 100 percent cotton woven flannel shorts. The shorts have a fabric covered elasticized waistband, a fly front which has a single button closure and does not break the waistband, side seam pockets, and contrasting fabric bands at the bottom of each leg opening. The fabric bands measure approximately 2 inches in width.

Style 2001F is a pair of men's 100 percent cotton woven flannel pants which extend from the waist to the ankles. The pants have a fabric covered elasticized waistband, a fly front which has a single button closure and does not break the waistband, side seam pockets, and contrasting fabric bands at the bottom of each leg opening. The fabric bands measure approximately 4 inches in width.

These garments are referred to as men's sleep shorts and sleep pants and classification is sought as men's other sleepwear garments similar to pajamas.

ISSUE:

Are styles 1001F and 2001F classifiable as men's other sleepwear garments similar to pajamas in heading 6207, Harmonized Tariff Schedule of the United States Annotated (HTSUSA); or, as men's shorts and trousers of heading 6203, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

Heading 6207 provides for, among other things, men's nightshirts, pajamas and similar articles. The Explanatory Notes (EN) for the Harmonized Commodity Description and Coding System, the official interpretation of the Harmonized System at the international level, do not provide much additional information than that provided by the language of the heading. The EN for heading 6207 provides, in part, the following:

The heading also includes nightshirts, pyjamas, bathrobes (including beachrobes), dressing gowns and similar articles for men or boys (garments usually worn indoors).

Headquarters Ruling Letter (HRL) 951537 of June 29, 1992, cited in your submission, classified two men's cotton flannel shorts as men's other sleepwear in heading 6207. Based upon the description in the ruling, these garments appear to be virtually identical to style 1001F at issue here.

It is often stated that "the merchandise itself may be strong evidence of use." Mast Industries, Inc. V. United States, 9 CIT 549, at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). The garments at issue are manufactured with a fabric, flannel, generally associated with sleepwear garments. But, Customs notes that flannel is not exclusively used for sleepwear and its popularity for use in other garments appears to be increasing. These garments are styled similarly to men's pajama bottoms, though these cannot be pajama bottoms as there are no matching pajama tops. See, 088489 of April 18, 1991. Certain features of the subject garments, such as the covered waistband, side pockets and button fly, are features generally associated with garments intended to be worn in public as opposed to sleep garments.

To bolster your argument that these garments are men's sleepwear and should be classified as such, you have submitted documentation to show the garments are designed, manufactured, marketed and sold by your client as sleepwear to be worn to bed. In addition, you have submitted a letter from a buyer of your client's merchandise stating the garments are bought as sleepwear and will be marketed and displayed in the men's sleepwear/pajama departments of the buyer's stores as garments to be worn to bed.

As stated in Mast, at 551, "most consumers tend to purchase and use a garment in the manner in which it is marketed." You have claimed that these garments are marketed as sleepwear and have submitted documents to support that claim. Although the garments possess features not generally associated with men's sleepwear bottoms, they also possess features such as the styling and softness of fabric which are associated with sleepwear. When viewing the garment together with the additional information provided regarding the marketing, Customs agrees that these garments will be principally used as sleepwear and thus should be classified as such.

HOLDING:

Styles 1001F and 2001F are classifiable as men's sleepwear garments similar to pajamas and nightshirts in subheading 6207.91.3010, HTSUSA, textile category 351, dutiable at 6.5 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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